Custody battle for baby Veronica continues as Supreme Court sides with James Island family

Matt and Melanie Capobianco celebrated the ruling of the U.S. Supreme Court Tuesday June 25, 2013 that ruled in favor of overturning a state courtīs opinion that removed 3-year-old baby Veronica from their James Island home where she had spent more than half her life. Grace Beahm/Staff

The S.C. Supreme Court must take up the remanded case within 25 days, attorneys said. The Capobianco family said they would ask the court to finalize their adoption of Veronica and have her returned to South Carolina, but attorneys for her father said they would argue that it would be in her best interest to stay with him in Oklahoma. It's not known how long that process might take.

A South Carolina court might decide who will raise baby Veronica after the nation's top justices ruled Tuesday in favor of the James Island couple who tried to adopt her.

Key moments

April 2009: Engagement between Veronica's birth parents in Oklahoma ends, and father denies financial support.

July 2009: Struggling to provide for two children, mother finds Capobiancos through adoption agency.

September 2009: Veronica is born, and she is taken to South Carolina as the Capobiancos file for adoption.

January 2010: Father files for custody after he is served adoption papers.

July 2011: S.C. court says Indian Child Welfare Act applies.

September 2011: Family court in Charleston hears case.

December 2011: Court rules that ICWA demands Veronica's return to father. Veronica is taken to Oklahoma.

June 2013: High court rules 5-4 that ICWA didn't apply, reverses decision and sends case back to S.C. court.

But the 5-4 decision by the U.S. Supreme Court did nothing to finalize the 3-year-old's custody status, and to critics, the ruling further complicates future adoptions involving American Indian children.

What it means

Some attorneys think Tuesday's ruling will make it easier for people to adopt Native American children when a father hasn't yet expressed interest in a child and no other American Indian family has stepped up. This will make it easier for those children to be quickly placed in loving homes, they said.

Other attorneys think it might create situations in which a loving father who hasn't had custody of a child but wants to support the child is stripped of his rights. After that happens, anyone in an American Indian community could petition the court to adopt the child, or the father himself could make a case to adopt the child.

The implications of the Supreme Court's ruling likely will play out in later cases.

The five justices said the Indian Child Welfare Act didn't apply to Veronica's case because her father, Dusten Brown, expressed no interest in the girl before she was born. Because Veronica's mother is Hispanic, Veronica wasn't a part of an Indian home, so offering her up for adoption wouldn't remove her from one, the majority said.

The ruling reversed a Charleston family court's decision that sent Veronica to live with Brown, a Cherokee Nation member in Oklahoma, and remanded the case back to South Carolina judges.

The federal law, known as ICWA, was left largely untouched. Its implications for Veronica and the couple who tried to adopt her, Matt and Melanie Capobianco, also remain murky, because it does not demand her return.

The Capobiancos fought tears and praised the ruling, saying it would help prevent other adoptive families from getting mired in similar situations when Indian fathers change their minds about being in a child's life.

They plan to seek the South Carolina high court's approval of the adoption, they said, but it's not known how long that might take.

“We miss her very much, and we're looking forward to the opportunity to see her very soon,” Melanie Capobianco said. “We hope to get things resolved as soon as possible.”

The custody battle for the curly haired girl, who turns 4 in September, is far from over.

In the next month, the S.C. Supreme Court will take up the case again, and could punt it to Charleston. The Capobiancos could ask local judges to factor in the new ruling and order Veronica's return, but Brown could argue that it's in Veronica's best interest to stay with the family she has known for the past 18 months.

“I wish this was the end,” said Shannon Jones, a Charleston attorney who represented Brown in the lower court. “But it's just another beginning.”

The ruling

Justice Antonin Scalia, who sided with a tribe the only other time an ICWA case was heard, in 1989, and Justice Sonia Sotomayor wrote dissenting opinions. Justices Ruth Bader Ginsburg and Elena Kagan also dissented.

Alito wrote that ICWA doesn't prevent the termination of Brown's parental rights, because he didn't help Christinna Maldonado when she was pregnant with Veronica.

Brown didn't get involved until he learned about the adoption attempt. He challenged it, and his attorneys later stopped it under ICWA. Veronica went to live with Brown in late 2011.

In reversing the lower courts' ruling, Alito wrote that ICWA prevents the disruption of a biological parent's “continued custody,” so it doesn't apply because Brown never had custody.

Sotomayor said in dissent that Alito's reasoning was “anything but clear” and his ruling's result was “anything but right.”

The majority plucked a small portion of the law and used it to determine that ICWA didn't allow an unwed father to halt the adoption, she said. She channeled Congress' basic intent in drafting the law — to keep Indian children with Indian families and to preserve the connection with their native tribes.

“This father wants to raise his daughter, and the statute amply protects his right to do so,” Scalia also wrote in dissent. “There is no reason in law or policy to dilute that protection.”

The implications

Critics of the ruling summoned Sotomayor's dissent in pointing out a potential for bizarre implications.

Brown's grandparents or other members of the Cherokee Nation could try to adopt Veronica, the justice said.

If Brown's “parental rights are terminated so that an adoption becomes possible,” she wrote, “they will then be entitled to consideration.”

Marcia Zug, a law professor at the University of South Carolina, said the opinion could be interpreted to mean that supportive fathers who never had custody might not be able to claim their own children. That raised deeper questions about parental rights in general, she said.

“Remove the Indian aspect of this case,” Zug said, “and you have a situation where the court just upheld the termination of a fit, loving father.”

Jones, the Charleston attorney, said Brown was nervous, heartbroken and upset. The ruling means that the emotional ordeal for both sides will go on, she said.

The attorney and her client understood that the Capobiancos want a child of their own, Jones said, but Veronica already has a loving home. Jones urged the James Island couple to drop their campaign.

“She loves and is loved by her sister, grandparents, aunts, uncles and cousins. She is where she belongs,” Brown said in a statement. “I hope and pray her rights are protected and she's allowed to stay with her family.”

Terry Cross, executive director of the National Indian Child Welfare Association, said the opinion was based on a technicality, and that it confirms Congress' role in protecting American Indian families.

Bill Baker, chief of the Cherokee Nation, vowed that tribal leaders nationwide would continue supporting Brown's family with “every available resource.”

“Their fight is our fight,” Baker said. “We will be there every step of the way.”

The future

If the state court again takes up Veronica's adoption, it likely would consider that she has been absorbed into a new family during the past 18 months. She was with the Capobiancos for nearly 28 months.

Brown and the Capobiancos must work together to determine what's in her best interests, said Mark Demaray, former president of the American Academy of Adoption Attorneys.

“That court is going to have some tough decisions to make,” he said. “It's still a rough road for this child and these families.”

Demaray, an attorney in Washington state, said adoption attorneys have long wrestled with questions about whether ICWA applied to legal adoptions in which the father is Indian but the mother is not. The ruling helps clarify that ICWA cannot be invoked when a father hasn't been involved with a child, he said.

“You don't know what to do when there's no guy standing there to claim the child, and no one else was standing up to adopt her,” he said. “Making the determination (about whether ICWA applies) has been a challenge.”

William Allen, a professor of political science philosophy at Michigan State University who has long been critical of ICWA, said the decision is a sign that the high court doesn't always regard ICWA as having the final say when it comes to what's best for a child.

“I consider this to be an important turning point in our court's consideration of these cases,” he said. “Obviously, this is the beginning of a new era.”

After the opinion was published Tuesday, a sign in the Capobiancos' front yard said, “Bring Veronica home.” Standing nearby, Jessica Munday, a family spokeswoman, hinted at a continued custody battle, but she acknowledged Brown's stake.

“I just want Veronica to be with everyone who cares about her, including them,” Munday said. “They deserve to be in her life too.”

As she stood outside the couple's home, Munday tugged at the lavender “Save Veronica” bracelet on her wrist and wiped a tear. She has worn the bracelet this long, she said, so she doesn't plan to take it off now.

Enlarge Matt and his wife Melanie Capobianco tried to hold back tears before they had to turn over Veronica in Charleston in December 2011. The Capobiancos had to deliver Veronica to her biological father, Dusten Brown because of a 1978 law that applies to American Indian children. Grace Beahm/STaff

Matt and his wife Melanie Capobianco tried to hold back tears before they had to turn over Veronica in Charleston in December 2011. The Capobiancos had to deliver Veronica to her biological father, Dusten Brown because of a 1978 law that applies to American Indian children.

Enlarge Matt Capobianco kisses his wife, Melanie, as they celebrated the ruling Tuesday of the U.S. Supreme Court that overturned a state court´s opinion that removed Veronica from their James Island home. grace beahm/staff

Matt Capobianco kisses his wife, Melanie, as they celebrated the ruling Tuesday of the U.S. Supreme Court that overturned a state court´s opinion that removed Veronica from their James Island home.

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